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Saturday, September 25, 2010

Asbestos and the law

Asbestos and the law facts,

This article concerns asbestos-related legal and regulatory issues. Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history.Since asbestos-related disease has been identified by the medical profession in the late 1920s, workers' compensation cases were filed and resolved in secrecy, with a flood of litigation starting in the United States in the 1970s, and culminating in the 1980s and 1990s. A massive multi-district litigation (MDL) complex filing has remained pending in the Eastern District of Pennsylvania for over 20 years. As many of the scarring-related injury cases have been resolved, asbestos litigation continues to be hard-fought among the litigants, mainly in individually-brought cases for terminal cases of asbestosis and cancers.

Background

In the late 1800s and early 1900s, asbestos was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.

The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. They are also sharp and penetrate tissues.

Health problems attributed to asbestos include

Asbestosis - A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue from an acid produced by the body's attempt to dissolve the fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years.

Mesothelioma - A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.

Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years.

Diffuse pleural thickening

Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, Michael Wills, a British Member of Parliament, speaking in the House of Commons on July 13. 2006:

"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let alone analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".

"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."

Regulation and government action

Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part. Some examples follow.

Australia

A nationwide ban on importing and using all forms of asbestos took effect on 31 December 2003. Reflecting the ban, the National Occupational Health and Safety Commission (NOHSC) revised asbestos-related material to promote a consistent approach to controlling exposure to workplace asbestos and to introduce best-practice health and safety measures for asbestos management, control and removal. The ban does not cover asbestos materials or products already in use at the time the ban was implemented.

Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.

Brazil

The São Paulo State law 12.684/07 prohibits the use of any product which utilizes asbestos, this legislation having been formally upheld by the Brazilian Supremo Tribunal Federal .

Canada

The only asbestos mines still operating in Canada are in the Province of Quebec. They are owned by the Quebec government who expropriated the Asbestos Corporation Limited in 1981 from its American parent, General Dynamics. Quebec is the second largest producer in the world behind Russia and the world's largest exporter of asbestos. Quebec exports 95 percent of its chrysotile production, mostly to Asian and other poor countries. In 1999 the government of Canada went before the World Trade Organization to challenge, unsuccessfully, the ban on asbestos in France.

France

France banned the use of asbestos in 1997, and the WTO upheld France's right to the ban in 2000. In addition, France has called for a worldwide ban. .

Italy

Italy fully banned the use of asbestos in 1992 and set up a comprehensive plan for asbestos decontamination in industry and housing.

Japan

Japan did not fully ban asbestos until 2004, and so its government has been held responsible for related diseases.

New Zealand

In 1984 the import of raw amphibole (blue and brown) asbestos into New Zealand was banned. In 2002 the import of chrysotile (white) asbestos was banned.

United Kingdom

The British Government's Health and Safety Executive (HSE) has promoted rigorous controls on asbestos handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer.

"At least 3500 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade."

The TUC (UK) report cites a figure of 5000 deaths per year. TUC (UK)

The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level. . (There is currently no scientific consensus as to whether there does indeed exist such a specific threshold ).

Previously it was possible to claim compensation for pleural plaques caused by negligent exposure to asbestos, on the grounds that although it is in itself asymptomatic, it is linked to development of diffuse pleural thickening, which causes lung impairment. It has been highly contentious, however, as to the probability of pleural plaques developing into pleural thickening or other asbestos related illnesses. On October 17, 2007 this point was clarified by the Law Lords′ ruling that workers who have pleural plaques as a result of asbestos exposure will no longer be able to seek compensation as it does not in itself constitute a disease.

The Control of Asbestos Regulations were introduced in the UK in November 2006 and are an amalgamation of three previous sets of legislation (Asbestos Prohibition, Asbestos Licensing and the Control of Asbestos at Work Regulations) aimed at minimising the use and disturbance of asbestos containing materials within British workplaces. Essentially this legislation bans the import and use of most asbestos products and sets out guidelines on how best to manage those currently in-situ.

Dutyholders of all non-domestic properties within the UK must establish an asbestos register and a management plan. The exception is where the property age (post-1999 when Chrysotile asbestos was banned) would indicate that such products will not have been used during the construction of the building.

The removal of high-risk asbestos products from non-domestic properties is tightly controlled by the HSE and high-risk products such as thermal insulation must be removed under controlled conditions by licensed contractors. Further guidance on which products this applies to can be found on the HSE website along with a list of licensees.

United States

According to the Environmental Working Group Action Fund, 10,000 people a year die from asbestos-caused diseases the United States, including one out of every 125 American men who die over the age of 50. The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA).

According to a September 2004 of the American Journal of Respiratory and Critical Care Medicine, asbestos is still a hazard for 1.3 million US workers in the construction industry and for workers involved in the maintenance of buildings and equipment.

A Senate Subcommittee of the Health Education Labor and Pensions Committee heard testimony on July 31, 2001, regarding the health effects of asbestos. Members of the public, doctors, and scientists called for the United States to join other countries in a ban on the product.

Asbestos is not part of a ASTM (American Society for Testing and Materials) E 1527-05 Phase I Environmental Site Assessment (ESA). A Building Survey for Asbestos is considered an out-of-scope consideration under the industry standard ASTM 1527-05 Phase I ESA (see ASTM E 1527-05). ASTM Standard E 2356-04 should be consulted by the owner or owners' agent to determine which type of asbestos building survey is appropriate, typically either a baseline survey or a design survey of functional areas. Both types of surveys are explained in detail under ASTM Standard E 2356-04. Typically, a baseline survey is performed by an EPA (or State) licensed asbestos inspector. The baseline survey provides the buyer with sufficient information on presumed asbestos at the facility, often which leads to reduction in the assessed value of the building (due primarily to forthcoming abatement costs). Note: EPA NESHAP (National Emissions Standards for Hazardous Air Pollutants) and OSHA (Occupational Safety and Health Administration) Regulations must be consulted in addition to ASTM Standard E 2356-04 to ensure all statutory requirements are satisfied, ex. notification requirements for renovation/demolition. Asbestos is not a material covered under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act ) innocent purchaser defense. In some instances, the U.S. EPA includes asbestos contaminated facilities on the NPL (Superfund). Buyers should be careful not to purchase facilities, even with a ASTM E 1527-05 Phase I ESA completed, without a full understanding of all the hazards in a building or at a property, without evaluating non-scope ASTM E 1527-05 materials, such as asbestos, lead, PCBs, mercury, radon, et al. A standard ASTM E 1527-05 does not include asbestos surveys as standard practice.

Civil litigation

The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (December 2007)

The first lawsuits against asbestos manufacturers were brought in 1929. Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses. In June 1982, a retired boiler-maker, James Cavett, won a record award of $2.3 million compensatory and $1.5 million in punitive damages.

The Manville Corporation, formerly the Johns-Manville Corporation, filed for reorganization and protection under the United States Bankruptcy Code in August 1982. At the time, it was the largest company ever to file bankruptcy, and was one of the richest. Manville was then 181st on the Fortune 500, but was the defendant of 16,500 lawsuits related to the health effects of asbestos.

Johns-Manville was described by Ron Motley, a South Carolina attorney, as "the greatest corporate mass murderer in history." Court documents show that the corporation had a long history of hiding evidence of the ill effects of asbestos from its workers and the public. One of many examples is a memo from Johns-Manville's medical director to corporate headquarters :

The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience.

By the early 1990s, "more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Pitcher Industries, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries had declared bankruptcy. Filing for bankruptcy protects a company from its creditors." .

One of the major issues relating to asbestos in civil procedure is the latency of asbestos-related diseases. Most countries have limitation periods to bar actions that are taken long after the cause of action has lapsed. For example, in Malaysia the time period to file a tort action is six years from the time the tort occurred. Due to several asbestos-related actions, countries such as Australia have amended their laws relating to limitations to accumulate starting from time of discovery rather than time when the cause of action accrued.

The future of asbestos civil litigation

The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (December 2007)

Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 6,000 defendants and 600,000 claimants. Current trends indicate that the rate at which people are diagnosed with the disease will likely increase though the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases.

The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association.

United Kingdom

Guardian Unlimited reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos. However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." However this decision was reversed by the Court of Appeal. On the 17th October 2007, the House of Lords confirmed the Court of Appeal's decision. Pleural plaques no longer constitute actionable injury in the UK.

Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British Daily Telegraph's Associate quoted Equitas, the reinsurance vehicle which assumed Lloyd's of London's liabilities, which argued that asbestos claims were "greatest single threat to Lloyd's of London's existence." Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.

A turning point has recently come about involving the case of a young 45 year old mother from Southsea, Hampshire, who was exposed to asbestos from her grandfather’s work clothes and now suffers from mesothelioma. As a result, Michelle Campbell has received over £140,000 in compensation for her pain and suffering from the Ministry of Defence, highlighting that the legacy of asbestos will continue and is now capable of affecting a third generation of victims – the grandchildren of former dockyard workers and other men who worked with the deadly substance throughout their careers.

In May 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, have condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice. As a result of this outcry, the ruling has been overturned by Section three of the Compensation Act 2006.

In February 2010 a court ruling set a new precedent for Asbestosis claims . The case, in which widow Della Sabin attempted to claim compensation following her husband's death from Asbestosis, hinged on the issue of how many asbestos fibres must be present in the lungs for a claim to be valid. A research team based at Llandough Hospital initially reported that the minmum amount of fibres that needed to be present for a claim to be valid was 20 million (only 7 million were found in the sample taken from Mrs Sabin's husband Leslie). However, a subsequent US study suggested that, due to the fact that Leslie had lived for more than forty years after his exposure, a large number of fibres would have cleared from his body naturally; had he died twenty years earlier the asbestos count in his lungs would have been about 35 million fibres per gram. The Judge preferred this evidence, and ruled in favour of Mrs Sabin.

Brazil

In June 2008, the Brazilian Supremo Tribunal Federal (STF), voted to maintain the law (12.684/07) which prohibits the use of any product which utilizes asbestos in São Paulo State.. It is expected that the decision will be extended to include the whole country .

United States

Asbestos-related cases increased significantly on the U.S. Supreme Court docket after 1980. The Court has dealt with several asbestos-related cases since 1986. Two large class action settlements, designed to limit liability, came before the Court in 1997 and 1999. Both settlements were ultimately rejected by the Court because they would exclude future claimants, or those who later developed asbestos-related illnesses. See Amchem Products v. Windsor et al. and Ortiz v. Fireboard Corp. These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.

Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The Act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported by both victims and corporations.

On April 26, 2005, Dr. Philip J. Landrigan, Professor and Chair of the Department of Community and Preventive Medicine at Mount Sinai Medical Center in New York City,[29] testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions are unsupported by medicine and would unfairly exclude a large number of people who have become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill are the American Public Health Association and the Asbestos Workers Union.

On June 14, 2006, the Senate Judiciary Committee Committee approved an amendment to the Act which would allow victims of mesothelioma $1.1M within 30 days of their claim's approval. This version would also expand eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in Hurricanes Katrina and Rita. Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a sunset provision and the impact on the U.S. Budgetary process caused the bill to fail to leave committee.

Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to received some kind of compensation, even if greatly reduced from potential recoveries in the tort system.

Numerous lawsuits remain pending against (1) remaining non-bankrupt manufacturers of asbestos products, particularly those who continued to make such products into the early 1990s (2) manufacturers of machinery that required asbestos-containing parts to function properly; (3) owners of premises at which asbestos-containing products were installed; (4) retailers of asbestos-containing products; and (5) corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g., MetLife, a well-known insurance company who worked with Johns-Manville).

As of 2010, remaining non-bankrupt defendants continue to aggressively contested liability in the United States. One area of legal debate has been the area of so-called "component parts" in which a company is alleged to have sold equipment or machinery with asbestos gaskets, packing or other components that need repeated replacement or maintenance. Some courts have disapproved of such cases in certain financial circumstanes. In 2008, the Washington Supreme Court, the first state supreme court to reach the issue, decided in favor of the defense. The same issue is currently being briefed before the Supreme Court of California where three appellate courts have disapproved the doctrine, but a fourth has approved it in specific factual circumstances in O'Neil v. Crane Co., September 9, 2009, CA Appellate No. B208225.

Another area of dispute remains the so-called chrysotile-defense. Manufacturers of some products containing only chrysotile fibers claim that this product is not as harmful as amphibole-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals.

Online

The internet has become a highly competitive arena for firms trying to attract new clients. Pay-per-click costs on asbestos and mesothelioma keywords can exceed $65 per click and continually rank amongst the most expensive keywords. The potential payout for affiliates serving mesothelioma and asbestos ads has created a niche for spammers and webmasters who target search engines.

Criminal prosecution

United States

W. R. Grace and Company

According to the U.S. Department of Justice (DOJ), a federal grand jury indicted W. R. Grace and Company and seven top executives on February 5, 2005 for its operations of a vermiculite mine in Libby, Montana. The indictment accused Grace of wire fraud, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency (EPA) investigation, violation of the Clean Air Act, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The DOJ said 1,200 residents have developed asbestos-related diseases and some have died, and there could be many more injuries and deaths.

The conspiracy charges alone could result in a sentence of five years in prison, a $250,000 fine and three years of supervised release, as well as a $1 million fine per violation by the company.

On June 8, 2006, a federal judge dismissed the conspiracy charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.

In an appellate decision in September 2007, the government was given leave to reinstate the criminal charges . The same appellate court had earlier, in July, overturned an evidentiary finding that impaired the government's case. The company has already filed notice of a request for a rehearing, and the trial is now expected to begin in the winter of 2007 or spring of 2008.

Environmental - Asbestos Removal and Cleanup

Old Wailuku Post Office sealed off for Asbestos Removal.

Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. Over the last ten years, the federal government has prosecuted dozens of violations of the Act and violations of Racketeer Influenced and Corrupt Organizations Act (RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos. Contractors who ignore safety regulations in removing asbestos commit an environmental crime that exposes countless people to potentially fatal and excruciatingly painful lung diseases.

W. R. Grace and Company faces fines of up to $280 million for polluting the town of Libby, Montana. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.

On January 11, 2006, San Diego Gas & Electric Co., two of its employees and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and making false statements. If convicted the workers face five-year prison terms and a $250,000 fine for each violation. San Diego Gas & Electric faces fines of $2.5 million.

On December 12, 2004, New York father-and-son owners of asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history. The crimes related to a 10-year scheme to illegally remove asbestos. They were convicted on all 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup. The son was sentenced to 25 years in prison, forfeiture of $2 million in illegal proceeds from RICO activities, and restitution of $23,039,607 to his victims. The father was sentenced to 17 & 1/2 years in prison, forfeiture of $1.7 million in illegal proceeds, and restitution of $22,875,575 to his victims.

On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General Janet Reno said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."